Alphonse Louis Beaugeard v Brett Steven Samuels (Trading as Personal Touch Cleaning)

[1995] IRCA 361

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - long-term CASUAL EMPLOYMENT - whether VALID REASON for termination - termination HARSH, UNJUST AND UNREASONABLE - COMPENSATION

INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170DC, 170DE, 170DF(1)(a), 170EE

ALPHONSE LOUIS BEAUGEARD -v- BRETT STEVEN SAMUELS (Trading as Personal Touch Cleaning) - WI 95/1203

BEFORE:         PARKINSON JR

PLACE:           PERTH

DATE:             7 AUGUST 1995

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1203

BETWEEN:  ALPHONSE LOUIS BEAUGEARD
  -      Applicant

AND:  BRETT STEVEN SAMUELS   (TRADING AS PERSONAL
  TOUCH CLEANING)
  -       Respondent

MINUTE OF ORDERS

BEFORE:                 PARKINSON JR

PLACE:  PERTH

DATE:  7 AUGUST 1995

THE COURT ORDERS THAT:

1. The termination of the applicant's employment by the respondent contravened Sections 170DE and 170DC of the Industrial Relations Act 1988.

1. The respondent pay to the applicant compensation in the sum of $1,005.00.

1. Time for payment of compensation be 21 days from the date of this order.   

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1203

BETWEEN:  ALPHONSE LOUIS BEAUGEARD
  -      Applicant

AND:  BRETT STEVEN SAMUELS   (TRADING AS PERSONAL
  PERSONAL TOUCH CLEANING)
  -       Respondent       

BEFORE:                 PARKINSON JR

PLACE:  PERTH

DATE:  7 AUGUST 1995

REASONS FOR JUDGMENT

This is an application made pursuant to S170EA of the Industrial Relations Act 1988. As a preliminary matter the name of the respondent to the proceeding is amended to Brett Steven Samuels (Trading as Personal Touch Cleaning.)

The applicant was employed by the respondent as a cleaner on the basis of two hours work on five days per week. He was employed pursuant to a casual contract of employment which was regular and systematic and had been continuous with the respondent as successor or assignee of the business for almost 12 months. The applicant had worked for the two previous owners of the business of the respondent at the respondent’s regular school cleaning contract at Lumen Christi College and his total length of employment at the college exceeded seven years. Save for the first year of his employment at the college, he had performed his duties between 5 am and 7 am Monday to Friday.  These hours had previously been arranged between the applicant and the respondent as being suitable to the respective parties.

The evidence was that some time in early 1995, during the course of the contract negotiations between the respondent and the college as to the hours of cleaning, the hours for cleaning were specified to be between 3.30 pm and 6.30 pm.  The evidence was also that the respondent raised with the applicant shortly before the termination of the employment, these working hours.  The evidence is, however, extremely vague as to the terms upon which this matter was raised. 

The applicant’s evidence is that it was raised in the course of a conversation wherein he had rung to advise the respondent of his impending absence due to surgery on or about 14 February, 1995.  His evidence was that during the course of the conversation he gave reasons as to why the hours were difficult but that he was expecting Mrs Samuels to come back to him with her decision. The applicant denied that he had ever said “He was not going to work in the afternoon”.  The respondent did not call Mrs Samuels to give evidence. 

Mr Samuels gave evidence as to his knowledge of the events and circumstances of the conversation. His evidence was that as a result of the information he received, he gained the impression that the applicant was refusing to work and therefore he employed another person in his position. 

The evidence is that the surgery performed on the applicant had left him unable to work between 15 February, 1995 and 24 February, 1995. (Exhibit A2)  When the applicant was recovering from surgery his wife rang the respondent on Sunday 19 February, 1995 to advise of his continuing illness and was informed by Mrs Samuels that the applicant’s position had been filled by another. There is dispute as to the nature of this conversation and the reasons which were advanced for the termination at that point in time. However, no evidence was called from either participant in the conversation and the court is not assisted by the hearsay evidence of the applicant or Mr Samuels as to this aspect of the case.    

The applicant was informed directly of the termination of his employment by letter from the respondent dated 20 February, 1995. (Exhibit A3)   In that letter, various reasons for the termination of the employment were relied upon. There were no other discussions with the applicant during this period of illness and the letter of termination sent to him by mail was the only time where there was any advice to the applicant directly of the termination of employment or the reasons for it.

It was submitted on behalf of the applicant that his employment was terminated as a consequence of his temporary absence from work on account of temporary illness or injury. It was further submitted that the termination was without valid reason, in that allegations as to performance were invented subsequent to the termination of employment and that the termination was harsh, unjust and unreasonable having regard to its circumstances and implementation. It was submitted that it was harsh to terminate his employment whilst he was recovering from illness.

The applicant has raised in these proceedings the application of S170DF(1)(a) of the Act. That provision provides that termination of a person's employment for reasons of or including the reason of temporary absence from work on account of injury or illness is not a valid reason. The onus rests upon the respondent to prove on balance that such a reason was not a reason for the termination. In this matter, the reasons for the termination have been spelt out by the respondent in its letter of termination of employment dated 20 February, 1995. The evidence of Mr Samuels was consistent with these reasons and there is nothing in the evidence, other than a marked contemporaneity, to suggest that the illness was the reason or part of the reason for the termination. I am satisfied the termination of the employment was not for reasons prohibited by S170DF(1)(a) of the Act.

I turn now to consider the application of S170DE(1) and (2) and S170DC to the facts.

S170DE(1)

I am satisfied that the respondent was faced with a situation where the working hours available to be worked by the applicant were changed by necessity. I am not satisfied, however, that there was an operational requirement that the applicant’s employment be terminated as a consequence.  This is because the respondent has not established that as a consequence of the rescheduled hours, that the applicant had refused or was unable to comply with the amended hours of work.  I accept the evidence of the applicant that he had not refused to work the afternoon hours.  There was no evidence of any reliability or clarity, to the contrary.  I am satisfied that Mr Samuels drew conclusions as to the applicant’s availability which were not warranted or reasonable having regard to the evidence of the applicant. Nor was there sufficient evidence as to the impact that the applicant's principal employment would have upon his availability during those afternoon hours, to satisfy me on balance that there was an inevitability of termination such as to found it as being as a result of the operational requirements of the business.

S170DE(2)

In my view, the manner of termination of the applicant’s employment was harsh, unjust and unreasonable. This is because of the manner in which the applicant first received notification of the fact that his employment had been terminated, together with the failure by the respondent to discuss with the applicant the various allegations as to work performance relied upon as part of the reason for termination of the employment.

Whilst I accept that the applicant’s performance did cause some concerns to the respondent on occasions, I do not accept that the applicant was ever warned or counselled as to these matters in such a way as to make him aware that his continued employment was in jeopardy.  I am satisfied that there was no discussion as to terms of implementation of the changed hours nor any real opportunity given to the applicant to consider his position, and I am satisfied that it was never said to the applicant that if he was unable to accommodate those changed hours of work then there would no longer be a position available for him. In the context of an employee who had a period of in excess of seven years' employment history at the particular workplace, this conduct was harsh.

In all of the circumstances, this termination of employment was harsh, unjust and unreasonable and the applicant is entitled to a remedy pursuant to S170EE of the Act.

S170DC

I turn to consider the application of S170DC of the Act. This provision requires that prior to terminating the employment on the grounds of work performance or conduct an employee must be given an opportunity to respond to the allegations made. In so far as the respondent relied upon reasons of work performance to found the termination of the employment it is clear that no opportunity was accorded the applicant to respond in relation to the allegations. I find that the respondent failed to comply with S170DC of the Industrial Relations Act 1988.

Remedy

In all of the circumstances I am satisfied that the reinstatement of the applicant to the position he previously occupied would be impracticable having regard to the relationship between the parties and the nature of the business operated by the respondent and its circumstances, together with the casual employment status of the applicant and the fact of his full time employment elsewhere.

I do accept, however, that the applicant is entitled to compensation arising from the termination of the employment, having regard to the length of time the applicant had been employed on the college contract, albeit with various and different employers, together with his expressed views as to his desire for  continuance of employment. In the circumstances, I am satisfied that the applicant had a reasonable expectation of ongoing employment with the respondent and that even having regard to difficulties which may have arisen as a result of the alteration of hours of work, this was likely to be two or so months.

I am not, however, satisfied that the employment would be likely to have continued beyond that period, having regard to the changes of hours of work about which the applicant had expressed some concerns. I have decided to order the payment of compensation in the sum of $1,005.00 which represents a period of a further two months of earnings at the rate of $12.57 per hour for 10 hours per week.

The orders of the court shall be:

1. The termination of the employment by the respondent contravened Sections 170DE and 170DC of the Industrial Relations Act 1988.

1. The respondent pay to the applicant compensation in the sum of $1,005.00.

1. Time for payment of compensation be 21 days from the date of this order.   
   I certify that this and the preceding five pages are a true copy of the Reasons for Judgment of Judicial Registrar Parkinson

Associate

Date:

Representative for the applicant:                   Janine Marie Freeman
  Liquor, Hospitality & Miscellaneous
  Workers' Union

The respondent represented himself

Hearing date:         7 August 1995
Judgment date:      7 August 1995